United States of America v. State of Florida - Final Order of Dismissal

I.

A.

The Supreme Court has made clear that ''when an agency in its governmental capacity is meant to have standing, Congress says so.'' Director, Office Of Workers' Comp. Programs, Dep't Of Lab. v. Newport News Shipbuilding And Dry Dock Co., 514 U.S. 122, 129 (1995) ("Newport News") (emphasis in original). Title Il's enforcement section provides certain ''remedies, procedures, and rights...to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.'' 42 U.S.C. §12133 (emphasis added). Laid beside the enforcement provisions of Titles I and III of the Americans With Disabilities Act, it is clear that Title II does not confer standing on the Attorney General and that the Department is not a ''person alleging discrimination.''⁴

The Americans With Disabilities Act ("ADA") sets forth various prohibitions against disability-discrimination. As a whole, Congress's stated intent was ''to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.'' 42 U.S.C. §12101(b)(1). However, to achieve this end, Congress subdivided the ADA into three titles, each with distinct rights and remedial measures. Title I prohibits disability-discrimination in employment. See 42 U.S.C. §§12111-12117. Title II governs the administration of public services provided by governmental entities. See 42 U.S.C. §§12131-12165. And Title III proscribes disability-discrimination in public accommodations provided by private entities. See 42 U.S.C. §§12181-12189. 

Unlike Title II, whose enforcement provision speaks only of "person[s] alleging discrimination,'' Titles I and III of the ADA expressly confer standing upon the Attorney General to initiate litigation. Title I provides that ''[t]he powers, remedies and procedures set forth in [Title VII of the Civil Rights Act of 1964] shall be the powers, remedies, and procedures this subchapter provides to the [Equal Employment Opportunity] Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter...concerning employment.'' 42 U.S.C. §12117(a). In turn, Title VII of the Civil Rights Act of 1964 authorizes the Attorney General to seek various forms of judicial relief. See 42 U.S.C. §2000e-5(f) ("the Attorney General [] may bring a civil action against such respondent in the appropriate United States district court"); 42 U.S.C. §2000e-6(a) ("the Attorney General may bring a civil action in the appropriate district court of the United States"); 42 U.S.C. §2000e-8(c) ("lf any person required to comply with the provisions of this subsection fails or refuses to do so, the [appropriate] United States district court...shall, upon application of...the Attorney General...have jurisdiction to issue to such person an order requiring him to comply"). Title III of the ADA grants "the Attorney General [authority to] commence a civil action in any appropriate United States district court,'' if she has reasonable cause to believe that "(i) any person or group of persons is engaged in a pattern or practice of discrimination under this subchapter; or (ii) any person or group of persons has been discriminated against and such discrimination raises an issue of general public importance.'' 42 U.S.C. §12188(b)(1)(B).

Where Congress has conferred standing on a particular actor in one section of a statutory scheme, but not in another, its silence must be read to preclude standing. E.g., Marshall v. Gibson's Prod., Inc. Of Plano, 584 F.2d 668, 672-676 (5th Cir. 1978)⁵; see In re Griffith, 206 F.3d 1389, 1394 (11th Cir. 2000) (en banc) ("where Congress knows how to say something but chooses not to, its silence is controlling"). Newport News controls. There, the Supreme Court held that the Director of the Office of Workers' Compensation ("the Director'') lacked standing to pursue an appeal of the decision of an administrative review board in federal court. Newport News, 514 U.S. at 136. Central to the Court's reasoning was the absence of a provision conferring standing upon the agency head to prosecute appeals, when such a provision was found in two similar statutes. While the Longshore and Harbor Workers Compensation Act (''LHWCA'') solely authorized "any person adversely affected or aggrieved by a final order of the Board'' to seek review in the appropriate court of appeals, 33 U.S.C. §921(c), the Occupational Safety and Health Act of 1970 contained a ''virtually identical'' appeal provision, plus a provision granting the Secretary of Labor authority to appeal. Id. at 130. Likewise, the Black Lung Benefits Act of 1973 contained a provision notably absent from the LHWCA: one making the Secretary of Labor "a party in any proceeding relative to a claim for benefits.'' Id. at 135 (quoting 30 U.S.C. §932(k)). Faced with these measures, and noting that ''[t]he withholding of agency authority is as significant as the granting of it,'' the Supreme Court concluded that the Director had no standing to proceed in federal court. Id. at 136. 

Congress's grant of litigation authority to the Attorney General in Titles I and III of the ADA--juxtaposed against its omission in Title Il--compels the same result. As in Newport News, ''the normal conclusion one would derive from putting these statutes side by side is this: When, in a legislative scheme of this sort, Congress wants the [Attorney General] to have standing, it says so." Id. at 135. And as in Newport News, the absence of Congress's "say so" precludes the Department from suing under Title II.

The Department deigns Newport News to be little more than a quirk of administrative law. Any fair reading of the case refutes this contention--for Newport News dealt not with the intricacies of administrative procedure, but the critical bridge between administrative proceedings and the judiciary: standing. Were there any doubt, the Supreme Court cited two provisions of Title VII of the Civil Rights Act of 1964 expressly authorizing civil litigation by agencies to explain why the Director lacked standing. Id. at 130. Notably, the very provisions cited by the Newport News Court are the civil enforcement remedies incorporated into Title I of the ADA. See id. (citing 42 U.S.C. §§2000e-5(f) & 2000e-4(g)). Newport News does not govern administrative appeals as such, but rather an agency's standing to proceed in federal court. 

It is also apparent that the Department is not a "person alleging discrimination.'' 42 U.S.C. §12133. There is a ''longstanding interpretive presumption that 'person' does not include the sovereign.'' Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780 (2000). This principle is not limited merely to the regulatory sweep of a statute, but extends also to those provisions defining the actors who may be plaintiffs under the statute, those who have standing. Compare id. at 787-88 (finding that a state is not a ''person'' subject to liability under the False Claims Act) with United States v. Cooper Corp., 312 U.S. 600, 606 (1941) (holding that the United States is not a "person'' authorized to bring an action under the Sherman Act). Thus, except upon an affirmative showing of statutory intent to the contrary, "'person' does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.'' Int'l Primate Prot. League v. Admin. of Tulane Educ. Fund, 500 U.S. 72, 82-83 (1991). No such showing can be made under the ADA. Title I of the ADA extends remedial authority, including authority to commence civil suit, to ''the [Equal Employment Opportunity] Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability.'' 42 U.S.C. §12117(a). Title II grants remedial authority only to ''person[s] alleging discrimination.'' 42 U.S.C. §12133. The implication is clear: if the Attorney General is not a ''person'' under Title I, she is not a ''person'' under Title II either.

The Department posits that ''whether the Attorney General is a person under the statute is simply beside the point,'' and that the Congressional judgment that Title Il's remedies shall be ''provide[d] to any person alleging discrimination'' does not mean that those remedies are provided only to those persons. DE 226 at 23-24. To the contrary: the language Congress chose means precisely that, and who is a person under the statute is precisely the point. Persons alleging discrimination are not, as the Department suggests, merely intended beneficiaries of the statute. Qualified individuals with a disability are the intended beneficiaries; private parties alleging discrimination are the mechanism by which Title Il's substantive guarantees are enforced. The Court is not free to ignore the statutory text in the manner the Department suggests. 

Three well-established support the Court's reading principles of interpretation further of the ADA. First is the "normal rule of statutory interpretation that identical words used in different parts of the same act are intended to have the same meaning.'' Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995) (quoting Department of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994)); see also Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) ("we cannot accept respondent's position without unreasonably giving the word 'filed' two different meanings in the same section of the statute"). Next is the surplusage canon, the ''cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.'' Kungys v. United States, 485 U.S. 759, 778 (1988); see also Aspley v. Murphy, 52 F. 570, 574 (5th Cir. 1892) (stating that courts must "lean in favor of a construction which will render every word operative rather than one which may make some idle and nugatory"). If the Attorney General were a "person alleging discrimination'' under Title II, then reference to her in Title I would be redundant. Or the term ''person'' would have different meanings in Titles I and II. Nonsense. In both Title I and Title II of the ADA, the Attorney General is not a ''person alleging discrimination.''

Lastly, the negative implication canon, or expressio unius, supports this construction. That is, ''[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.'' Alexander v. Sandoval, 523 U.S. 275, 290 (2001). By authorizing suits by individuals, Congress intended to bar administrative agencies, like the Department, from enforcement by litigation.